Commonwealth of Kentucky

Workers’ Compensation Board

 

 

 

OPINION ENTERED: June 30, 2017

 

 

CLAIM NO. 201563578

 

 

SANDRA JOHNSON                                 PETITIONER

 

 

 

VS.        APPEAL FROM HON. JANE RICE WILLIAMS,

                 ADMINISTRATIVE LAW JUDGE

 

 

 

ADECCO

and HON. JANE RICE WILLIAMS,

ADMINISTRATIVE LAW JUDGE                      RESPONDENTS

 

 

OPINION

VACATING AND REMANDING

                       * * * * * *

 

 

BEFORE:  ALVEY, Chairman, STIVERS and RECHTER, Members. 

 

STIVERS, Member. Sandra Johnson (“Johnson”) appeals from the February 13, 2017, Opinion and Order of Hon. Jane Rice Williams, Administrative Law Judge (“ALJ”) determining Johnson is not entitled to additional indemnity benefits. No petition for reconsideration was filed. On appeal, Johnson asserts the prior award of permanent total disability (“PTD”) benefits does not preclude her subsequent claim for benefits.

          The Form 101 alleges on October 26, 2015, Johnson sustained work-related injuries to her head, neck, and right shoulder when she tripped and fell backwards while in the employ of Adecco as a packer.

Johnson’s September 6, 2016, deposition was introduced. She testified that between 2010 and 2011, she moved to Tallahassee, Florida and got a job at Tallahassee Memorial Hospital performing housekeeping. She returned to Louisville to care for her brother, and then returned to Tallahassee in 2012 to work as a housekeeper for Hampton Inn. When Johnson and her husband began experiencing marital problems, she returned to Louisville and worked as a packer for Ebay through Adecco.

At the time of the alleged October 26, 2015, incident, the most Johnson lifted working for Ebay was 20 to 25 pounds. She testified that approximately ten percent of her time was spent working in the warehouse, and the remaining ninety percent was spent standing on an assembly line packing boxes. As to what occurred on October 26, 2015, Johnson testified as follows:

Q: Tell us what you were doing there at the eBay facility on October 26, 2015 – how this occurred.

A: I was putting the candle inside a big box, short box. And it was cut open so I step in and out, okay. And stacking them.

 

Q: So it was tall enough you could actually step into the box?

 

A: Yes, sir. It was pretty big.

 

Q: Okay.

 

A: And when I put this feet [sic] in and got in, and this feet [sic] didn’t make it (indicating). And I fell back into it about five cases. I had candles in my hand, and I fell back and hurt my shoulder. And I was out for about four or five minutes –

 

Q: Okay. So –

 

A: - when I hit the concrete.

 

Q: So you stepped in with you – into the box with your left foot –

 

A: Left foot.

 

Q: And you were trying to get –

 

A: And my right feet [sic], it got hung on the box. When it got cut, it wasn’t straight. It was crooked.

 

Q: Your right foot got hung up?

 

A: Yeah.

 

Q: And then you fell straight back?

 

A: Straight back. And I still hurt right here (indicating) in my neck. And I passed out for about three or four minutes.

 

Q: Okay.

A: And they wouldn’t let me up until I got [sic] woke up.

 

Johnson described her symptoms immediately after her fall:

A: I couldn’t – I couldn’t lift my arm up nothing [sic]. And they helped me up. I couldn’t get up automatic [sic] – off the floor. So two of them hold [sic] my feet and one lift [sic] me up by my shoulder, under my shoulder, my other shoulder; and put me in the wheelchair and rolled me out to the ambulance.

 

Q: And then the ambulance took you to Norton Audubon?

 

A: Yes, sir. Then they called – well, the work called my mom, told – they [sic] going to be taking me to the hospital because I was out for two or three minutes. And I had a big knot on my head for about three or four weeks.

 

Q: What were your immediate symptoms at that time? When you came to and they’re taking you to the hospital, what kind of symptoms were you having then?

 

A: I had a migraine headache.

 

Q: Headache? Did you –

 

A: Shoulder pain and stuff.

 

Q: As far as your neck, was that all just on your right side of your neck?

 

A: All up through here (indicating).

 

Q: Okay. And you’re indicating that your right side of your neck, running down into the top of your right shoulder.

 

A: Yeah. Sometimes I get, like, a pinched nerve in there that won’t let go. And I get, like, a little shock going down my arm right through here to my neck. And when I get that, sometimes I get that migraine headache, won’t go away. I have to stay in the bedroom with no lights, nothing on.

 

Q: And did you ever have any migraine headaches before October 26, 2015?

 

A: No, sir. I might’ve had a headache, but not [sic] nothing like this. I can’t lay in my bed. I have to sleep in the La-Z-Boy chair. I got [sic] to sit up with a pillow on my neck.

 

 

          At the time of her deposition, Johnson was allegedly experiencing the following limitations:

Q: What are you able to do physically, now, as far as –

 

A: Nothing.

 

Q: - with your neck –

 

A: Not much.

 

Q: - with your neck and right shoulder?

 

A: I can’t tie my shoes. I can’t – I can’t lift my arm that much up or I get a sharp pain in my neck and my arm.

 

Q: You can’t lift your right arm to shoulder level?

 

A: About like that (demonstrating). When I lift it too high, I get, like, a shooting [sic] in my neck and my arm.

Q: So you’re indicating –

 

A: And I can’t turn my neck that far. Like, that is how far I can turn my neck (demonstrating). If I turn it more, I get a migraine headache.

 

Q: How much can you lift with your right arm?

 

A: Not much. About five. Loaf of bread would be good enough. I can’t pick up nothing [sic] like five, ten pounds. I get [sic] to hurting [sic].

 

Q: Let’s say, what about like a gallon of milk or a gallon of water?

 

A: I pick that up.

 

Q: You can lift that up?

 

A: Yeah. I pick that up. But I can’t get more than two or three things up with my hands, though.

 

Q: Okay. Can you – do you have limitations as far as with the headaches and your neck, as far as being able to bend over or squat?

 

A: I bend over. Sure.

 

Q: You can do that?

 

A: Yes, sir.

 

Q: Okay. Are you limited at all – do you drive?

 

A: I can’t drive. I don’t got [sic] a license.

 

Q: Okay. So you don’t drive anyway. You didn’t drive before the –

 

A: No, sir. I haven’t. No. I haven’t drove [sic] my whole life.

 

          Johnson testified she was currently unemployed and undergoing treatment for stomach cancer. She described her symptoms related to this alleged injury as follows:

Q: Have your symptoms in your head as far as the headaches, and then your symptoms in your right shoulder, have those changed over time since October 25^th, 2015 – or October – I’m sorry – or October 26, 2015?

 

A: Yes. It has.

 

Q: Tell us how the symptoms have changed.

 

A: It just – I get more migraine headaches. I get – I can’t sleep that good [sic]. I got [sic] to sit up to sleep because my shoulder hurts and my neck hurts. If I lay all the way down, I just start hurting real bad in my shoulder and my neck. If I lay straight back. I got [sic] to sleep in a La-Z-Boy chair with a pillow on my neck.

 

Q: Okay. Explain for us again the symptoms you’re having in your –

 

A: I get, like, a sharp pain going up my shoulder here (indicating) to my neck, and sometimes you [sic] go [sic] over here (indicating) and I get tingling in my arms sometimes.

 

Q: How far is that down your right arm does the tingling go?

 

A: Like though here (indicating).

 

Q: Down to about your elbow?

A: Yes, sir.

 

Q: Okay. And how often is that, that you get that tingling down to your elbow?

 

A: Sometimes three or four times a day.

 

Q: I mean, is it a daily thing, though?

 

A: Day [sic], yeah.

 

Q: And then the symptoms you were indicating right around the joint of your right shoulder –

 

A: Shoulder, yeah.

 

Q: - up to the neck, into the neck –

 

A: Neck.

 

Q: - how often are those symptoms there?

Is that there –

 

A: All the time. All the time.

 

Q: Is that pain?

 

A: It’s pain.

 

Q: Is there tingling and numbness kind of feelings with that?

 

A: Maybe sometimes tingling right through here (indicating). And sometimes you get, like, a pinched nerve right there that won’t let go sometimes.

 

Q: You never had anything like that before October 26 –

 

A: No, sir. I haven’t.

 

Q: - 2015?

          Adecco introduced the December 18, 2007, Opinion, Order, and Award in Claim No. 2006-80814 styled Sandra Parker vs. Newburg Lodging, LLC d/b/a Best Western Hotel, of Hon. Lawrence F. Smith, Administrative Law Judge (“ALJ Smith”) determining Johnson was permanently totally disabled due to a lower back injury sustained in the course of moving a dresser on July 19, 2006, while in the employ of Newburg Lodging, LLC d/b/a/ Best Western Hotel (“Newburg Lodging”).^[1] ALJ Smith relied upon the 22% impairment rating assessed by Dr. David Changaris and awarded PTD benefits in the amount of $182.33 per week beginning July 20, 2006, and medical benefits.

          Adecco also introduced the Form 110 Settlement Agreement in that same claim entered into between Johnson and Newburg Lodging regarding the July 19, 2006, low back injury which was approved by ALJ Smith on May 23, 2008. The Form 110 reflects a diagnoses of “lumbar back pain secondary to L4-5 disc herniation and possible L5-S1 spondylolysis without spondylolisghesis [sic]; disc bulge at L2-3” and a “compromised settlement based on permanent total disability” of $102,000.00 lump sum. Under “Other Information” is the following:

By Opinion, Order and Award rendered December 18, 2007, the Administrative Law Judge found claimant to be permanently totally occupationally disabled and awarded weekly benefits of $182.33 per week until she reaches social security retirement age, a period of 1,254 weeks. The total value of claimant’s permanent total disability award is thus $228,642.82. Counsel for the claimant has filed a motion and affidavit for approval of attorney’s fee seeking approval of a maximum attorney’s fee of $12,000.00. The parties have since recognized a mutual benefit to commuting the judgment to a lump sum pay compromised settlement based on permanent total disability. The total value of that lump sum settlement is $102,000.00, with $12,000.00 allocated for the claimant’s attorney’s fee already earned. The balance of $90,000.00 will be paid to and accepted by the claimant as follows:

 

Said lump sum of $90,000.00 is deemed to have been comprised of the following benefits: The lump sum of $89,500.00 shall be paid to and accepted by Sandra Parker in exchange for her waiver to any and all past, present and future workers’ compensation income benefits of any kind or degree, including TTD and PTD benefits; the lump sum of $500.00 shall be paid to and accepted by Sandra Parker in exchange for her waiver of any and all rights to workers’ compensation vocational rehabilitation benefits. Reimbursement for case expenses shall be paid by claimant to her counsel from the $90,000.00 lump sum payment.

 

Under the terms of this agreement, reasonable, necessary and work-related medical expenses will continue to be paid to or on behalf of claimant, Sandra Parker, by the Defendant/Employer and/or its workers’ compensation carrier pursuant to KRS 342 et seq. as well as 803 KAR 25:010 et. seq. Claimant agrees to designate a treating physician within 14 days of the approval of this Agreement by the Administrative Law Judge.

 

Plaintiff’s right to reopen her workers’ compensation claim is to remain open.

(emphasis added).

 

          Adecco also filed the Form 110 Settlement Agreement in Claim No. 2006-80814, approved by Hon. J. Landon Overfield, Administrative Law Judge on December 28, 2015, which reflects the following agreement between Johnson and Newburg Lodging regarding the July 19, 2006, injury:  $500.00 for waiver or buyout of past medical benefits; $3,000.00 for waiver or buyout of future medical benefits; and $500.00 for waiver of right to reopen.

          In the December 13, 2016, Benefit Review Conference Order and Memorandum, the following contested issues are listed: benefits per KRS 342.730; average weekly wage; unpaid or contested medical expenses; injury as defined by the ACT; and exclusion for pre-existing disability/impairment. Under “Other” is “fraud” and “temporary vs. permanent disability.” Also, under “Other Matters” is the following: “Motion to resolve Bifurcated on [sic] the [sic] issue of whether Plaintiff is entitled to additional benefits due to prior Award of Permanent Total Disability. Briefs due Jan 13, 2017.”^[2]

          In the February 13, 2017, Opinion and Order, the ALJ set forth the following Legal Analysis:

     The legal question to be answered is whether a claimant is permitted to receive more than total disability. It is well established in Kentucky law that a claimant is not entitled to more than total disability. Osborne Mining Corp. v. Blackburn, 397 S.W. 2d 144 (Ky. 1965) In this case and several others it was held that a claimant cannot receive more than the maximum amount of benefits awardable under Kentucky law through a combination of injury claims.

     Plaintiff, in her brief, raises several issues worth mentioning. One is that even though Plaintiff’s award was for total disability, she did not receive the full award because of the subsequent compromised agreement. This is not relevant. She was found totally disabled. An award of total disability is designed to provide the maximum benefit allowed. It is not the option of a claimant to compromise a settlement for an accelerated lump sum in order to return to work and potentially repeat the same injury claim process over and over…not that Johnson would, but under the scenario for which she requests recovery, the potential is there.

     Plaintiff’s argument of the “whole man” theory also does not apply. This theory discusses that a prior award does not automatically trigger a carve out on a second claim. It does not hold that Plaintiff may receive more than total disability.

     As Johnson was found to be totally disabled, she is entitled to no additional indemnity benefits.

 

          On appeal, Johnson asserts a prior award of PTD benefits does not preclude an award of benefits for a subsequent injury where the parties to the prior award have reached a settlement regarding the PTD benefits due. We vacate and remand for additional findings.

          In the December 18, 2007, Opinion, Order, and Award, Claim No. 2006-80814, ALJ Smith determined Johnson was permanently totally disabled and awarded PTD benefits. Johnson and Adecco subsequently reached a compromised lump sum settlement, approved by ALJ Smith on May 23, 2008. The settlement agreement commuting ALJ Smith’s award of PTD benefits to a lump sum payment does not negate ALJ Smith’s determination of permanent total disability and award of PTD benefits.

          That said, the fact ALJ Smith determined Johnson to be permanently totally disabled in the December 18, 2007, Opinion, Order, and Award does not, on its own, preclude a subsequent award of indemnity benefits in the case sub judice. On remand and utilizing the medical testimony in the record, the ALJ must determine whether Johnson sustained a work-related injury on October 26, 2015, as defined by the Workers’ Compensation Act. Should the ALJ determine Johnson sustained a work-related injury on October 26, 2015, the ALJ must determine the extent of Johnson’s occupational disability attributable to the injury. Should the ALJ determine Johnson is permanently totally disabled due to the fall she sustained on October 26, 2015, Johnson’s award of PTD benefits, as calculated pursuant to KRS 342.730(1), must be offset by the $182.33 permanent total disability benefits awarded in the December 18, 2007, Opinion, Order, and Award.[3] See Matney v. Newberg, 849 S.W.2d 526 (Ky. 1992). In the alternative, should the ALJ award permanent partial disability benefits, Johnson’s total weekly benefit for this award combined with the previous award of $182.33 per week for the low back injury, must not exceed the maximum amount to which Johnson would be entitled had the ALJ adjudged her to be permanently totally disabled due to the 2015 injury. 

          In Matney v. Newberg, 849 S.W.2d 526, 527 (Ky. 1992), the Supreme Court of Kentucky informs that "a claimant may not, at one time, be compensated for more than total occupational disability because he can, in fact, be no more than totally, occupationally disabled."  In Matney, the Supreme Court continued as follows: "We find no indication that the legislature intended to authorize benefits for combined awards exceeding those for total occupational disability." Id. Larson's Workmen's Compensation Law, §92.01 is also instructive on this issue:

There is both a theoretical and a practical reason for the holding that awards for successive or concurrent permanent injuries should not take the form of weekly payments higher than the weekly maxima for total disability. The theoretical reason is that, at a given moment in time, a person can be no more than totally disabled. The practical reason is that if the worker is allowed to draw weekly benefits simultaneously from a permanent total and a permanent partial award, it may be more profitable for him or her to be disabled than to be well--a situation which compensation law studiously avoids in order to prevent inducement to malingering.

          In Newberg v. Weaver, 866 S.W.2d 435 (Ky. 1993), the Kentucky Supreme Court characterized the Workers’ Compensation Act as follows:

     It is well established that the Workers' Compensation Act is social legislation which encompasses a number of public policy considerations. Foremost of these is the policy of compensating disabled workers for the decrease in their wage earning capacity which has resulted from an injury caused by work. See KRS 342.0011(11). Under the Act, a worker who sustains a permanent, occupational disability is awarded a benefit which is paid periodically in order to provide a continuing source of income in an amount sufficient to enable the worker and his dependents to meet their ongoing and essential requirements for food, clothing, and shelter. Second, with the goal of promoting the prompt disposition of compensation claims and of controlling the expense of prosecuting a claim, both the legislature and the courts have adopted a policy encouraging the settlement of these claims. [citations omitted]

          To hold that upon her return to full-time employment, Johnson has no right to income and medical benefits after sustaining a subsequent work injury would defeat the beneficent purpose of the Act.  Such a ruling would also dissuade an injured worker from pursuing rehabilitation to become physically capable of returning to gainful employment.  This too would be contrary to the purpose of the Act.              

          Accordingly, the ALJ’s determination Johnson is not entitled to additional indemnity benefits because she was found to be permanently totally disabled by ALJ Smith in the December 18, 2007, Opinion, Order, and Award is VACATED. This claim is REMANDED to the ALJ for additional findings consistent with the views set forth herein.    

          ALVEY, CHAIRMAN, CONCURS.

          RECHTER, MEMBER, CONCURS IN RESULT ONLY.

COUNSEL FOR PETITIONER:

HON PHILLIPE W RICH

1001 TREVILIAN WAY

LOUISVILLE KY 40213

COUNSEL FOR RESPONDENT:

HON THOMAS L FERRERI 614 W MAIN ST STE 5500 LOUISVILLE KY 40202

ADMINISTRATIVE LAW JUDGE:

HON JANE RICE WILLIAMS

657 CHAMBERLIN AVE

FRANKFORT KY 40601